BY PHOEBE WANJOHI.

A Congolese businessman has been arraigned and charged before a Nairobi court with obtaining She 11 million claiming he was in position to supply gold.

Katengura Dollars Candy alias Kasongo Mwamba Paul appeared before Milimani Senior Principal Magistrate Kennedy Cheruyot and pleaded not guilty to the charges.

He is accused that on diverse dates between November 28 and December 27, 2018 at Great Source offices in Kilimani area Nairobi county, jointly with others not before court, with intent to obtained Sh 11,752,000 million from Poline sin by falsely pretending that he was in a position to sell to her 10 Kilograms of gold, a fact he knew was false or untrue.

He was released on a a cash bail of Sh 1 million.

The matter will be mentioned on March 2 for fixing of a hearing date.

BY SAM ALFAN.

The Insurance Appeals Tribunal has ordered AAR Insurance to pay a bill of Sh3.8 million incurred by a patient about three years ago but which the insurer refused to settle because the policy holder had defaulted on the premiums.

The tribunal chaired by Wambua Kilonzo found that it was wrong for the insurer to cancel the policy because of a notice issued by a third party.

“The Interested Party (AAR Insurance) shall pay the Appellant the entire sum of Kshs. 3,801,924/= being the medical bill incurred by the Appellant’s deceased wife Mrs. Zarina Amirali Mapara at The Aga Khan University Hospital as at 7th June, 2017 less the Kshs.250,000/= already paid”, Ruled tribunal.

The tribunal found that Amirali Hassanali Mohammed had a valid policy with AAR Insurance and its cancellation was not proper and the insurer remained bound by the terms and conditions in the policy document.

“In any event the Tribunal finds and holds that the Insurance agreement between the Appellant (Mohammed) and the Interested Party (AAR) is the principle document and its terms cannot be amended by another agreement,” the Tribunal ruled.

Mohammed filed the appeal before the Tribunal after the Commissioner of Insurance dismissed his complaint saying AAR cannot be compelled to settle the bill.

He had accused AAR of failing to settle a bill of Sh3,801,924, incurred by his late wife Zarina Amerali. Instead, the insurer paid an ex-gratia of Sh250,000 to “lighten his financial burden”

Mohammed said he took a medical insurance policy with the AAR in 2016 covering a number of his family members who included his wife Zarina.

His wife was admitted at The Aga Khan University Hospital for about one month in May 2017. And after she was discharged in June 2017, AAR refused to settle the claim. The tribunal heard that he had a long-standing medical insurance relationship with AAR since 1997.

He said the policy lapsed without any communication from the insurer yet AAR Credit Services Ltd, a sister company of AAR, was still holding his unbanked cheques. Yet the agreement he signed said he should be given 21 days’ notice.

He wanted the insurer to foot at least 50 percent of the medical bill and be compelled to refund premiums paid before the lapse of the policy and the three unbanked cheques.

In reply, AAR said it agreed to service the advanced credit facility failing which the financier would have the policy cancelled.

The cancellation of the policy, the tribunal heard, was purely because he defaulted in payment of premium adding that he was duly notified by the financier. The tribunal heard that through the intervention of his broker, the insurer made the ex-gratia payment.

After hearing the complaint, the Commissioner ruled that the insurance contract was premised on the financing contract without which the insurance contract would not have been granted or sustained.

BY SAM ALFAN.

The Supreme Court has clarified that an advisory opinion filed before it by the Speaker to the Nairobi County Assembly Beatrice Elachi did not a bar Governor Mike Sonko from appointing a deputy governor.

In a press statement to the media and a communication to the lawyers of Nairobi Governor,Joseph Kiarie the Deputy Registrar of the Supreme Court Daniel ole Keiwua has said the petition.

“The same does not act as a stay of any duties or obligations as sought for clarification. The matter will further come for mention on March ,2020 for further directions”, said deputy registrar.

“Therefore the reference filed in the Supreme Court of Kenya should not be visited upon by any party to act as a stay,” ole Keiwua said in the correspondence dated February 7, 2020 to Kiarie for Sonko.

Kiarie had written to the Registrar of the Supreme Court on February 3, 2020 seeking clarification as to whether the petition by the Speaker stopped or barred any office/commission/ authorities to perform its duties as stipulated by the law.
Supreme court Deputy Registrar ole Keiwua has further clarified that the court is yet to hear the petition and has not made any decision about the appointment of the Deputy Speaker Ann Kananu Mwenda.

The petition has since been listed for March 5, 2020 when the Registrar will give further directions on the matter.
In the petition, the speaker is seeking an advisory opinion from the Supreme Court regarding a lacuna in the law in the absence of both the governor and the deputy.

However, the situation in the office of the Nairobi Governor does not attain constitutional threshold to be vacuum.

According to Article 182 of the constitutional the office of the Governor can only be vacant if the governor resigns, in writing, addressed to the speaker of the county assembly, ceases to be eligible to be elected county governor under Article 180(2);(d) is convicted of an offence punishable by imprisonment for at least twelve months, is removed from office under this Constitution among others.

In a petition filed at the apex court by the assembly through advocate John Diro wants the court to give direction whether there is a vacuum in the office of the governor and whether Governor Sonko can appoint a deputy in the current circumstances.

This comes after the arraignment and indictment of Governor Sonko before the Anti-Corruption court last December.
The assembly also sought a Constitutional interpretation on whether the speaker of the assembly can assume the office as per the law with full powers vested of the governor in the absence of both the governor and the deputy. 

Elachi also informed the court to render an opinion on what happens when the speaker declines to assume the office.

“The request is meant to seek your wise counsel on the grey areas of the law for the purpose of guiding the functioning of constitutional sphere of the devolved government, ” she said.

“Subsequently, the advisory opinion sought in this reference will help in establishing the jurisprudence and give clarity regarding the current unique situation facing the county of Nairobi….,” read in part, the application.

The application lists the county assembly speaker and the clerk as applicants and Nairobi County government, the attorney general and the chair of IEBC as intended interested parties.

Submitting their views, the county government led by senior counsel Prof Tom Ojienda and lawyer Harrisson Kinyanjui told the court that there is a lacuna in the manner in which the law is being interpreted in the current scenario of Nairobi County.

Prof Ojienda said  Sonko “is still actively in office and the constitutionally elected Governor of Nairobi County”, however, the case by Elachi raises a very serious constitutional question “as to how the office of the governor of Nairobi County can be assumed in the absence of a sitting governor.”

“As far as we are concerned Sonko is still the Governor of Nairobi County and there is no vacancy which can be filled or assumed by the Speaker,” said Prof Ojienda.

He, nonetheless, called for the expeditious determination whether a Speaker can assume the office of the Governor in the absence of a deputy governor.

“The question for determination is how the office of the Governor Nairobi County can be assumed in the absence of a sitting governor, and whether the Speaker can assume the position of governor or whether a speaker of any other county can assume that office in the event there is no governor in office,” he said.

Prof Ojienda also said it should also be decided whether a Speaker can discharge the functions of two offices – that of the Governor and that of the Speaker simultaneously.

He said the ruling of High Court Judge Mumbi Ngugi has given certain directions which needs to be interpreted by the Supreme Court.

The lawyer said according to that decision of Justice Ngugi governors who have been charged over alleged graft should stay away from office but that “does not mean they have been removed from office constitutionally.”

The law professor said the question of being out office is very serious and must be thought through before a final decision is arrived at as one is assumed innocent until proven otherwise and “for the current question a supreme decision is required.”

Lawyers have differed with Justice Ngugi’s finding that a governor should not discharge their functions pending determination of the graft cases against them.

Kinyanjui told the court that there is a pending constitutional application in which Sonko is seeking a three judge bench to determine the question whether “a governor who is charged should be kept away from discharging official duties.”

Keiwua ordered all the parties to file written submissions in answer to the serious constitutional issues.

BY SAM ALFAN.

Garissa county government now risks having most of its property especially vehicles attached by an auctioneer in a bid to recover over Sh 221.3 million owed to an insurance firm.

Takafur insurance Africa company moved to court seeking to attach eight vehicles belonging to Garissa county government including fire engines in a bid to recover millions of money owned by the Korane administration.

The company hired the services of Recovery Concept Auctioneers to execute the attachment of the said county government assets to ensure recovery of their money according to documents seen by NairobiTimez.

The high court had ordered Governor Korane administration to settle over Sh221.3 million debt to an insurance company.

The order by a Garissa high commercial court directed the Garissa county government, county secretary and the county chief finance officer to pay the Takafur Insurance of Africa limited Sh 221,365,643 cash for insurance services rendered to the county government.

Takafur Insurance of Africa limited is said to have rendered unsettled insurance services to the Garissa county government valued at Sh 221,365,643.

The order came following a commercial suit filed by Tafakur insurance last year against the Garissa county government seeking the county to settle the debt.

According to court papers, the company was awarded a contract tender no. CGG/T/001/2015-2016 that was renewed from time to time by the county government to provide the insurance cover services for the county’s staff.

Among the insurance covers provided by the company are Work Men Injury Benefits Act, Group Personal accident, Employers’ Liability, motor vehicle insurance cover for all types of motor vehicles owned by the county government and a medical insurance cover for the employers.

The county government of Garissa is said have defaulted in the payment of premiums owing to the insurance company and according to the insurance, they are counting losses.

The outstanding motor vehicle insurance balance is at Sh 119,799,426 while Workmen Injury benefits and employer’s liability add up to Sh 77,991,818.

The medical insurance cover debt is also at Sh 23, 574, 39 adding up to a whooping Sh 221,365,643.

According to Tafakur,the county government has failed, neglected and refused to pay them in fragrant breach of the terms and conditions of the services rendered by the insurance company.

This is despite the insurance providing the much needed services in the various sectors as requested for by the said county government from time to time.

“Despite demand to pay the monies owing and notices to sue duly issued to the county government, they have refused, failed and neglected to heed to the call for the money owed,” Takaful insurance company said.

BY SAM ALFAN.

Nairobi Governor Mike Sonko has filed a fresh application seeking to quash the entire Sh 357 million graft charges saying that the evidence obtained by EACC is illegal as he was not informed of the said investigations.

In his documents filed in court, Sonko says the charges against him are based on evidence from investigations conducted by the Ethics and Anti-Corruption Commission into his bank accounts.

“The officers already had the information they are purporting to get from the said banks on September last year when they interviewed me. The commission and the DPP used the information from the bank statements to prefer charges against me in the graft case and the amended charges,” he says.

In March last year a three judge bench of the High court quashed charges against Deputy Chief Justice Philomena Mwilu saying that prosecutors shouldn’t proceed with a case adding that investigators had illegally accessed her bank accounts.

“The manner in which the Directorate of Criminal Investigations violated her rights to privacy obtained the evidence of her bank accounts was illegal. They acquired the documents in misuse of the court order and misrepresentation,” ruled Judge Helen Omondi.

Sonko says the officers of the commission violated his right to be notified of the intention to investigate his bank accounts.

He adds that the evidence obtained during the investigations into his bank accounts by officers of the commission without following due process was a violation of his right to privacy.

“The constitution provides that evidence obtained in a manner that violates any right shall be excluded if the admission of that evidence would render the trial unfair or would be detrimental to the administration of justice,” reads the court documents.

In December last year, the DPP presented two charge sheets against Sonko and several other county officials and business entities.

In the first file he was accused of embezzling county funds to the tune of Sh 24.1 million. The second file he was faced economic crimes, abuse of office, unlawful acquisition of property and irregular payments that saw the county lose Sh 357 million.

He was later released on a cash bail of Sh 15 million and barred from accessing his office.

The DPP has since served Sonko with an amended charge sheet dated January 27, 2020 which he is yet to take fresh plea.

Sonko however wants the DPP stopped from prosecuting, continuing with prosecution or instituting criminal prosecution against him on illegally obtained evidence from unlawful investigations of his bank accounts.

“A charge is the basis of a criminal case and if found to be based on illegally obtained evidence, then the prosecution cannot stand,” says Sonko.

Further, the governor says that the commission issued notices dated January 28, 2020 to Kenya commercial bank, cooperative bank of Kenya, first community bank limited, diamond trust bank Kenya and equity bank of Kenya for provision of information and documents. The said notices have not been issued to Sonko personally but have been issued to banks and copied to him for information.

The said notices cover bank statements that were already in the hands of the commission on September 3 last year when Sonko recorded a statement at the offices of the commission.

The said notices issued by the commission to the said banks are to purportedly assist the commission in its investigations in corruption allegations at the Nairobi county government offices for the period between January 1,2012 and December 31 last year.

The county chief also adds that the fresh notices are irregular, unlawful and illegal because the commission has the information that it is purporting to get from the said banks.

Sonko claims that the commission have realized that they obtained information from the various banks illegally, without his consent, knowledge or involvement and they are now issuing new notices after the fact to try and cover up their error of omission.

“The EACC is using the notices to try and cure an already existing illegality. Going by the law, the officers of the commission are obligated to issue me with a notice indicating that they wish to investigate my bank accounts before obtaining warrants to investigate them,” he says

Meanwhile ,Milimani chief Magistrate Douglas Ogoti will today afternoon (Thurday) rule on whether it will release Sonko’s passport to enable him travel outside the court.

The DPP though James Kihara Vehemently has opposed its release but Sonko urged the court to have it released as has been invited to attend the tenth session of the World Urban Forum which takes place from February 8 to 13 2020in the United Arab Emirates.

Through lawyer George Kithi, the governor said his Kenyan and Diplomatic passports are in custody of the court having deposited them on December 11, 2019 as a condition to have him released from detention on bond terms.

“The forum is important to the people of Nairobi as it is a strategic opportunity for multi-stakeholder cooperation in the implementation of the New Urban Agenda and the sustainable Development Goals. Especially in making cities and human settlements inclusive, safe and resilient and sustainable,” said the lawyer.

Kihara said that Sonko having been barred from accessing his office last December by the anti-corruption court cannot travel to UAE for official duties to represent the Kenya’s capital city.